NOT so long ago, a quartet of top lawyers namely Attorney Qhalehang Letsika and advocates Motia Teele, Zwelakhe Mda and Karabo Mohau (Kings’ Council), all of whom deeply despised by large sections of Basotho society including their own peers in the legal profession for opposing every decision made by the executive designed to reform the judiciary, suddenly felt what it is like to be on the short end of the stick.
The Law Society of Lesotho vs Mosito & others case a fortnight ago attracted our attention. The case challenged the indefinite closure of the court of appeal, a condition which has effectively paralysed the entire judicial system.
It must be understood that it is now almost two years since this apex court has been rendered dysfunctional. This came as a result of a flurry of litigations and challenges against the appointed judge president Dr Kananelo Mosito by the same lawyers. One of the latest constitutional challenges against Dr Mosito, which was also instigated by the same quartet, ruled Dr Mosito ineligible to hold office declaring his appointment to be in violation of the Constitution. He has noted appeal challenging that judgement.
What shocked some of us was not only how the court grossly misdirected itself in that judgement but also the unacceptable language used. We have insisted on investigations into determining who actually had an input into the writing of that judgment since self- respecting judges would not normally use such personal language against the prime minister of any country regardless of whether he acted constitutionally or unconstitutionally. We submit the Prime Minister was right in every constitutional respect and by extension we fully support Dr Mosito’s noted appeal.
In this latest challenge brought by the Law Society of Lesotho, the respondents (Adv Teele, Attorney Letsika, Adv Mda and Adv Mohau) representing themselves probably thought they would sail through the application as they had always done before. In the not-so distant past they would simply go through the motions in the almost assured belief that the outcome was pre- determined.
It used to be like that and they probably thought the charade was going to follow the familiar pattern. Not so anymore. Now the shoe is on the other foot and it’s hurting. For the first time in nearly a year in which the quartet ruled the High Court and treated it like it was their personal fiefdom, they felt what it was like to be on the receiving end.
Let me give you a brief description of the arguments in court since we were there as an interested party. On Friday 28th of September the appellants (Law Society) and the respondents (Mosito and seven others) both agreed before the Honourable Judge Moses Chinhengo that they would file their heads of arguments on Saturday, 29th and be in court on Sunday 30th to argue the case.
The case was scheduled to start at 10:30am and the appellants came to court ready to argue the matter before the honourable judge. To their dismay, following flimsy excuses that Attorney Letsika tried in vain to call Attorney Monaheng Rasekoai on his mobile but the latter could not be reached and that they had no other choice but to serve the appellants with papers notifying them of their intention to ask for the judge’s recusal at 10:30 am same day. In law this is called ambush and it is despicable.
In the not-so-distant past this trick would have worked when the machinery of justice at the High Court was specifically switched to work in their favour. Times have changed. It failed dismally. Adv Teele took almost six hours trying to throw everything at the judge short of a kitchen sink. He came up short. The judge declined their application for recusal ruling that the respondents have failed to establish neither the basis nor the grounds for his recusal. Adv Teele’s argument was primarily hinged on his grossly erroneous interpretation of Sec 123 (5) and Sec 124 of the constitution. He admitted he did not agree with the section. Quite telling though was his contradictory statements as to the position of the acting President of the Appeal Court.
At first, he said Judge Yvonne Mokgoro of South Africa was in fact the acting president only to somersault a few minutes later to admit that her appointment had been terminated unlawfully. Ironically his affidavit said something totally different. In the affidavit he claimed that Judge Mokgoro had a case pending in court to clear the confusion over who was the legally appointed acting president of the Appeal Court between Justice Mokgoro and Judge ‘Maseshophe Hlajoane.
It is perhaps Attorney Rasekoai’s submissions which finally unravelled Adv Teele’s case. They knocked out the last remaining defences in Adv Teele’s case. Attorney Rasekoai indicated that mere apprehension by a litigant cannot be a valid ground for recusal. There had to be hard facts, which Adv Teele did not have, to warrant a case for recusal.
Appellant’s legal representative, Adv Christopher Lephuthing, hit a knockout blow that a nation of 2 million people cannot be suffocated by only four people. Worse four people who cannot claim to have made any meaningful contribution to the country’s political, intellectual growth or its standing internationally. The top lawyers are suddenly feeling what it is like to be under. Dr Mosito felt it; he partially still is thanks to the same top lawyers.
Hands Off Mosito campaigners – Makhoathi Mantsoe
Makhoathimantsoe201@gmail.com +266 53228361